Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Wednesday, April 25, 2018

CLE on Brewery and Distillery Law in Tennessee

0000000 CLEThe National Business Institute is holding a conference entitled, Brewery and Distillery Law in Tennessee, which will take place on Friday, May 04, 2018 at the Millennium Maxwell House Hotel in Nashville, TN. Provided below is a description of the event:

Program Description

Your Ultimate Guide

The brewing and distilling industries are rapidly growing, but complex state and federal regulations are ever-present obstacles to startups and established businesses alike. This legal program will teach you how to help your clients build a solid business; minimize liability; and navigate the licensing, labeling and tax reporting challenges along the way. You will also learn how to effectively protect your client's intellectual property, avoid legal landmines in advertising and receive valuable tips for negotiating distribution agreements. Enhance your understanding of this unique area of law - register today!

  • Advise your client on business entity selection, insurance, financing and more.
  • Effectively navigate licensing and label approval procedures.
  • Confidently advise your clients on state and federal regulations and tax reporting requirements.
  • Receive beneficial advice for drafting an array of contracts ranging from distributor agreements to equipment leases.
  • Ensure clients design substantially-compliant advertisements.
  • Understand the nuances of protecting the intellectual property of breweries and distilleries.
  • Anticipate and learn how to appropriately manage the different ethical situations that can arise.

Who Should Attend

This basic-to-intermediate level program is designed for:

  • Attorneys
  • Accountants
  • Tax Preparers
  • Brewery Owners/Operators
  • Bankers/Loan Officers
  • Paralegals

Course Content

  1. Walking the Ethical Line
  2. Brewery and Distillery Business Entity Selection, Formation, Finance and Insurance
  3. Licensing, Labeling and Regulatory Compliance
  4. Federal and State Tax Reporting Requirements
  5. Negotiating/Drafting Brewery and Distillery Contracts
  6. Intellectual Property and Advertising

Continuing Education Credit

Continuing Legal Education – CLE: 6.00 *

National Association of State Boards of Accountancy – CPE for Accountants/NASBA: 7.00 *

April 25, 2018 in Conferences & CLE, Estate Planning - Generally, Professional Responsibility | Permalink | Comments (0)

Monday, April 23, 2018

Article on Fiduciary Principles in Trust Law

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-04-23/2429f222-b8ad-4638-add7-7129f32712c4.pngRobert H. Sitkoff published an Article entitled, Fiduciary Principles in Trust Law, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article:

This book chapter, prepared for the forthcoming Oxford Handbook of Fiduciary Law, canvasses the fiduciary principles applicable to a trustee of a donative, irrevocable private trust subject. The focus is on prevailing American law. The chapter examines (a) the trigger for finding a trust fiduciary relationship and the scope of that relationship; (b) the duty of loyalty; (c) the duty of prudence across the distribution, investment, custodial, and administrative functions of trusteeship; (d) other fiduciary duties in trust law, including the prominent duty of impartiality and the increasingly salient duty to give information to the beneficiaries; (e) the extent to which fiduciary principles in trust law are mandatory or may be waived by the settlor or by a beneficiary; and (f) the remedies available for a breach of duty by a trustee.

April 23, 2018 in Articles, Estate Planning - Generally, Professional Responsibility, Trusts | Permalink | Comments (0)

Monday, April 16, 2018

Article on Proliferation of Hidden Income and Tax Evasion: Perceptions of Malaysian Professionals

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-04-16/aaaaa1b3-b10d-4243-9f8d-a78a30a84750.pngJeyapalan Kasipillai, Mei Yee Lee, & Sakthi Mahenthiran published an Article entitled, Proliferation of Hidden Income and Tax Evasion: Perceptions of Malaysian Professionals, Tax Law: Tax Law & Policy eJournal (2018). Provided below is an abstract of the Article:

This study employs a qualitative approach to investigate the perceptions of professionals regarding tax evasion and avoidance in the informal sectors in Malaysia. We estimate tax evasion due to hidden income in Malaysia approximates MYR 44.97 billion (A$ 13.87 billion), around 5.4 per cent of gross domestic product in 2014. We used a survey to seek insights on hidden income from respondents who are experts in the fields of accounting and taxation, including senior government officers and tax professionals. The findings of the survey reveal that the three main sectors perceived to be engaged in ‘hidden income’ are, in ranking order: (i) petty trade; (ii) logging and timber; and (iii) money lending and pawn-broking. Our interviews with the respondents also reveal additional informal sectors involved in these activities, including human trafficking, bribing of enforcement agencies and illegal logging. This study assists to identify tax compliance gaps among the different sectors of the economy and provides information on sectors that require greater tax auditing. This will, in turn, furnish input to policy makers to develop strategies in encouraging voluntary compliance as well as enhancing the effectiveness of the existing tax and bureaucratic systems.

April 16, 2018 in Articles, Estate Planning - Generally, Professional Responsibility | Permalink | Comments (0)

Friday, April 13, 2018

Article on Best Interests in the Long Term: Fiduciary Duties and ESG Integration

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-04-13/12a1baaa-1566-4e6f-b909-1c8b372cb48c.pngSusan N. Gary published an Article entitled, Best Interests in the Long Term: Fiduciary Duties and ESG Integration, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article:

Two persistent misconceptions continue to affect the way fiduciaries think about sustainable investing: (1) fiduciary duties block a fiduciary investor from considering environmental and social factors and (2) if a fiduciary investor engages in sustainable or responsible investing, the portfolio will suffer financially. An examination of socially responsible investing, ESG integration (an investment process that involves consideration of material environmental, social and governance (ESG) factors together with traditional financial metrics), corporate social responsibility, and impact investing, shows that neither of these assumptions is correct. Analyses of different forms of sustainable investing have found no necessary cost to a portfolio when sustainable funds are compared with traditional funds. The SEC already requires companies to report material information, and reporting standards developed by the Sustainable Accounting Standards Board (SASB) and the Global Impact Investing Network (GIIN) are improving the understanding of the financial materiality of ESG factors.

Given the changes in finance, fiduciary duties also require examination. The duty to act as a prudent investor is of central importance, and the available data explains why a prudent investor should consider ESG information. Moreover, since the duty of impartiality protects future beneficiaries, that duty requires a long-term investment time horizon, increasing the need to take ESG factors into consideration. It follows that a prudent fiduciary investor not only may, but should, use ESG information in developing financial policy and decisions.

April 13, 2018 in Articles, Estate Planning - Generally, Professional Responsibility | Permalink | Comments (0)

Thursday, April 12, 2018

Article on Fiduciary Law and Equity: Enforcing Loyalty

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-04-11/6ecc4cb2-1fda-4093-885a-4dc453e8a18f.pngEmily L. Sherwin published an Article entitled, Fiduciary Law and Equity: Enforcing Loyalty, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article:

In this essay, I suggest that the combination of formal and remedial techniques that equity courts traditionally have applied to the problem of trustee loyalty is strongly oriented to deterrence. One consequence is that when loyalty and prudence conflict, primacy for loyalty is built into the structure of fiduciary law. It is open to courts to reduce the role of loyalty in trust law by softening the standards currently applied to trustees. A change of this type, however, would not be a minor adjustment in the law governing trustees, but would instead represent fundamental structural change.

April 12, 2018 in Articles, Estate Planning - Generally, Professional Responsibility, Trusts | Permalink | Comments (0)

Sunday, April 8, 2018

CLE on Estate Planners and Other Advisors Working Together: Are Your Communications Protected?

0000000 CLEThe American Law Institute is holding a conference entitled, Estate Planners and Other Advisors Working Together: Are Your Communications Protected?, which will take place on Tuesday, April 24, 2018 via telephone seminar and audio webcast. Provided below is a description of the event:

Why You Should Attend

Estate planning attorneys may be asked to include other advisors in conversations about estate and tax planning, and clients often assume that communications about their estate plans will remain confidential regardless of who is involved. But privilege does not apply to all communications and is easily waived, putting both client and attorney at risk. This webcast will address when privilege issues arise, the difference between privilege and work product, and considerations for maintaining privilege when other advisors (including accountants who have their own privileges) are participating in the planning process.

What You Will Learn

A panel of experienced estate planners – all fellows of the American College of Trust and Estate Counsel – will discuss:

The context for how these issues arise

The attorney client privilege, work product doctrine, and fiduciary exception: How they work and in what different contexts they arise

How the presence of a third party can impact the ability to utilize attorney-client privilege or work product protections for a client

The accountants’ privilege

Ways to prevent involvement of other advisors from blowing the protections

Suggestions for attorneys and other advisors to increase the likelihoods that client’s communications can be protected and kept secret

Have a question for the faculty? Send your questions to tsquestions@ali-cle.org. Questions submitted during the program will be answered live by the faculty. In addition, all registrants will receive a set of downloadable course materials to accompany the program.

Need ethics credit? This seminar provides 1.5 to 1.8 hours of ethics instruction, depending on state requirements, in MCLE jurisdictions that accredit live telephone seminars and/or webcasts.

Who Should Attend

Any estate planner or related professional will benefit from listening to this webcast on maintaining privilege in client communications.

April 8, 2018 in Conferences & CLE, Estate Planning - Generally, Professional Responsibility | Permalink | Comments (0)

Tuesday, April 3, 2018

Hot Spots: Will Drafting Tips from the Bench

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-04-03/4b049615-b444-415c-8070-9e7401317169.pngWills drafted attorneys who do so rarely can lead to unanticipated headaches in probate and during the administration of an estate. Those attorneys who maintain an all-purpose “standard” will form may be unaware of certain perils, which tend to be uncovered only after their client has passed. The most common problems are as follows: 1) use of ambiguous and imprecise language, 2) not considering the practical implications of using certain language, 3) scrivener’s errors caused by copying and pasting, 4) failing to grasp the substantive law, and 5) improper execution of the will ceremony.

See Hon. Steve M. King, Hot Spots: Will Drafting Tips from the Bench, Texas Bar Journal: Planning and Probate Law, Vol. 81, No. 3, March 2018.

April 3, 2018 in Estate Administration, Estate Planning - Generally, Professional Responsibility | Permalink | Comments (1)

Saturday, March 31, 2018

Article on Fiduciary Principles in European Civil Law Systems

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-03-31/a898d8bc-6c9c-4d54-a93e-ca7f4e01293c.pngMartin Gelter & Geneviève Helleringer published an Article entitled, Fiduciary Principles in European Civil Law Systems, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article:

This chapter surveys fiduciary principles in Western European civil law jurisdictions. Focusing on France and Germany, we suggest that functional equivalents to fiduciary duties have developed on the Continent, although they do not always carry exactly the same connotations as their common law counterparts. We suggest that the common law developed fiduciary duties as a distinct category largely for two reasons. First, the common law distinguished between law and equity, with fiduciary law developing within equity. By contrast, contracts law required consideration, which meant that fiduciary principles for gratuitous actions necessarily arose outside of contract law. Civil law generally did not develop this particular categorization. For example, the paradigmatic fiduciary relationship, the mandate (agency), is by default a gratuitous contract. Consequently, the lines between fiduciary and contract law remained blurred. Second, common law bargaining for contracts emphasizes part autonomy more strongly, while the civil law of contracts incorporated a stronger duty of good faith, thus making it more hospitable to an implied and inchoate loyalty obligation. The duty of loyalty in civil law jurisdictions is not categorically different from such duties, but exists on a continuum with them. Consequently, civil law duties of loyalty in those relationships that would be considered fiduciary under the common law can be seen as an extension of weaker loyalty obligations elsewhere. We survey the civil law of agency, equivalents of trust, as well as corporate and financial law. Germany and countries influenced by German law began to identify duties of loyalty in corporate and trust relationships in the middle of the 20th Century and identified them as a larger civil law principle permeating different areas of law. France and related jurisdictions have been more reluctant to adopt such duties, and have been more likely to rely on specific statutory prohibitions to reach similar results.

March 31, 2018 in Articles, Estate Planning - Generally, Professional Responsibility, Trusts | Permalink | Comments (0)

Saturday, March 24, 2018

Impact Investing Under the Uniform Prudent Investor Act

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-03-23/b06f37bd-3a5f-467f-8bed-223ffaedc38f.pngImpact investing can work within the confines of the Uniform Prudent Investor Act (UPIA) as long as the trustee utilizes an environmental, social, or governance integration process that mirrors traditional fiduciary investments relating to fees, returns, and diversification. Other forms of impact investing may be acceptable from a fiduciary perspective but should be evaluated in the context of the particular strategy at issue. Given the comments to UPIA §5, however, a trustee may wish to consider tailored provisions that authorize impact investing or procure consents and then seek to partner with a firm having an established and clearly detailed impact process.

See Casey C. Clark & Andy Kirkpatrick, Impact Investing Under the Uniform Prudent Investor Act, Probate and Property Magazine, March 2018.

March 24, 2018 in Estate Planning - Generally, Professional Responsibility | Permalink | Comments (0)

Thursday, March 15, 2018

Article on Access to Justice: What to Do About the Law of Wills

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-03-15/5cd72b98-f86d-4752-b414-df525dc763ac.pngIris J. Goodwin published an Article entitled, Access to Justice: What to Do About the Law of Wills, 2016 Wis. L. Rev. 947 (2016). Provided below is an abstract of the Article:

Part I of this Article places the online, do-it-yourself will in the context of the push to enlarge access to justice for people of poor or moderate means in civil law matters. Part I has three subsections. The first of these subsections examines the recent movement to expand pro se representation where sundry civil law rights are concerned. The second subsection explores the significance of pro se opportunities in non-litigious circumstances such as estate planning. The third subsection considers what might be at stake for the poor and middle class in the right to dispose of property at death. Part II treats the online, do-it-yourself will and its tenuous position in the current law of wills. Part III makes the case that the online, do-it-yourself will is not so clearly an attested will but is a hybrid, with attributes of a holographic instrument also. This insight sets the stage for the later argument that an exception in the law with respect to the rigorous treatment of legal language--a kind of interpretive generosity--previously extended to the holographic will is appropriately applied to this newer vehicle created via self-help. Part IV sets out the rigorous standards for execution that any will--lay-drawn or otherwise--must surmount. This Part examines both the historic requirements for execution (many of which are still in play in some states) and recent reforms, building to the observation that the attested will and the holographic one, even though each is predicated upon a distinct legal ethos, are starting to merge. This observation invites use of standards heretofore applicable to the holographic will (standards like interpretive generosity) to the attested (or hybrid). Part V leaves behind the rigors for executing a will and turns to the other legal challenge for the person who would create a will without assistance of counsel--the canons of construction for testamentary language. If the rigors of execution have begun to ameliorate, the standards for interpreting legal language are still robust. Part VI examines interpretive largess as it has been applied to holographic wills and suggests that it be extended to the online, do-it-yourself will. Part VII acknowledges the potential that an expanded use of interpretive largess could have on the law of future interests and suggests ways to cabin it by embedding its application in a rigorous methodology and then limiting its application.

March 15, 2018 in Articles, Estate Planning - Generally, Professional Responsibility, Wills | Permalink | Comments (1)